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Judgment Sheet 

IN THE PESHAWAR HIGH COURT, PESHAWAR 
JUDICIAL DEPARTMENT 

Writ Petition No. 1551-P/2012. 

JUDGMENT 

Date of hearing 11.04.2013 

Date of Announcement 

Petitioner. 

Respondents. 

DOST MUHAMMAD KHAN, C.J.- This single judgment 
shall also decide connected W.P.No. 3133/2011 entitled 
"F.M.Sabir Advocate Peshawar High Court Peshawar Vs. 
Federation of Pakistan through Ministry of Defence & 05 
others", W.P.No. 1550-P/2012 entitled "Malik Noor Khan 
Vs. Federation of Pakistan through Governor Khyber 
Pakhtunkhwa & 05 others" and W.P.No. 3134/2011 
entitled "Defence of Pakistan Council through its 
Provincial Convenient Syed Yousaf Shah & 06 others Vs. 
Federation of Pakistan through its Secretary Interior & 04 
others" because in all these petitions identical questions of 
law & facts are involved with the following prayers: - 



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i. "to order the respondents to 
immediately assert its State 
Sovereignty and convey forcefully to 
the US in clear terms that no further 
drone strikes will be tolerated on its 
sovereign territory; 

it to order the respondents to protect the 
'right to life' of its citizen and use 
force if need be to stop extrajudicial 
killings with drones; 

Hi. to provide redress for the criminal 
offences committed by those involved 
inside and outside Pakistan in drone 
operations and in particularly 
involved in the strike on 17 th March 
2011 by directing the relevant 
authorities that criminal charges, 
under the relevant laws of the Islamic 
Republic of Pakistan be registered 
against those responsible; 

iv. to order the respondents to 
immediately contact the Security 
Council of the United Nations for 
violation of Pakistan's territorial 



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sovereignty, protected by Article 2 (4) 
of the UN Charter and demand the 
adoption of a resolution condemning 
drone strikes and requiring the US to 
stop the strikes in Pakistan; 

v. to order the respondents to gather 
DATA of victims of drone strikes and 
encourage any such victims to come 
forth for the wrong done to them and 
approach the UN Human Rights 
Council and the Special Rapporteur 
on extrajudicial, summary or 
arbitrary executions for launching 
their complaint; 

vi. to order the respondents to use its 
'right to reparation' for the wrongful 
act under the customary international 
law and under the International Law 
Commission 's Draft Articles on State 
Responsibility and seek remedies 
available under Draft Articles of 
International Law Commission and 
any customary International Law. 



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Any other relief that this Hon'ble 
Court deems fit may also kindly be granted. 

2. The serial killing of local civilians both of North & 
South Waziristan Agency, adjoining Khyber Pakhtunkhwa 
Province through drone strikes visibly commenced from 
the year 2008 which is still continuing unabated. 

3. According to the report, based on physical 
verification, submitted by the Political Authorities of North 
Waziristan Agency, 896 Pakistani civilians, residents of 
the said Agency, were killed during the last five (05) years 
till December 2012 while 209 were seriously injured. In 
these drone attacks only 47 foreigner were killed and 06 
were injured. Many houses & vehicles of different 
category, make & model, worth millions dollars, were 
destroyed during these attacks. Besides, many cattle heads 
of different kinds were torn into pieces & charred, 
belonging to the local residents. 

Similarly, in South Waziristan Agency 70 drone 
strikes were carried out during last five (05) years till June 
2012 in which 553 local civilians were killed, 126 were 



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injured, 03 houses were destroyed and 23 vehicles were 
badly damaged. 

4. According to the Press Reports of International & 
National Media, some foreign militants are hiding in the 
mountainous region of North & South Waziristan Agency, 
beyond the access of the local Administration and semi- 
armed forces of Pakistan. 

5. The United States through self framed opinion 
labeled these foreign elements as their enemy. The U.S 
decision making troika, the President, Pentagon & CIA 
have joined hands to carryout drone strikes in these areas 
on spy information to hit & kill these elements, however, 
the ratio of killing of foreign elements is negligible while 
local civilians, non-combatants, casualties are shockingly 
considerable, beside damage caused to the properties of the 
local population, their households and other moveable 
properties including cattle heads, in great number, is a 
painful phenomena. The most shocking, gruesome & 
goriest side of these ruthless strikes is that the degree of 
precision is hardly maintained and why the figures, given 



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above, would prove that these are carried out at random 
and innocent civilians casualties mostly of infant babies, 
pre-teen & teenage children, women & others including 
their properties are hundred times greater than those, killed 
alleged to be militants. 

6. The President of Pakistan, the Parliament through 
unanimous resolution, the Prime Minister & his Cabinet 
and Military Leadership have openly condemned these 
attacks and have lodged soft protests with the US 
Authorities through its Ambassador in Pakistan. The other 
side of the story given by the U.S Authorities is that the 
then dictator, General ® Parvez Musharraf has given 
verbal consent to carryout these attacks in the tribal belt of 
North & South Waziristan Agency but there is nothing in 
writing to that effect with the Government of Pakistan or 
with the Government of USA to lend support to the view 
point of the U.S Authorities. 

7. Admittedly, neither the Security Council nor the 
UNO in general at any point of time has permitted the U.S 
Authorities particularly the CIA to carryout drone attacks 



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within the territory of Pakistan, a sovereign State, the old 
member of the UNO. The Pakistan Army has rendered 
unmatchable sacrifices while acting under the UNO / 
Security Council mandate to maintain peace & tranquility 
in different regions of the world where ethnic or other 
disturbances were rampant and killing of innocent civilians 
was going unabated. It has successfully restored peace in 
those regions of the world beside restoring communication, 
telecommunication, electricity & other civic facilities for 
the population of those troubled areas consisting different 
regions around the Globe and had earned great 
appreciation from the UNO and in particular from its 
Secretary General. 

8. The provisions of Article 2 (4) of the United 

Nations Charter provides as under: - 

"All members shall refrain in their 
international relations from the threat or 
use of force against the territorial integrity 
or political independence of any state or in 
any other manner inconsistent with the 
purposes of the United Nations". 



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9. The United Nations Millennium Declaration, 

contained in Resolution No. 55/2, adopted by the United 

Nations General Assembly on 18 th September, 2000, 

reinforced / reiterated the notion of territorial integrity and 

sovereign equality of all states in the following words: - 

"We are determined to establish a just and 
lasting peace all over the world in 
accordance with the purposes and 
principles of the Charter. We rededicate 
ourselves to support all efforts to uphold 
the sovereign equality of all States, respect 
for their territorial integrity and political 
independence, resolution of disputes by 
peaceful means and in conformity with the 
principles of justice and international law, 
the right to self-determination of peoples 
which remain under colonial domination 
and foreign occupation, non-interference 
in the internal affairs of States, respect for 
human rights and fundamental freedoms, 
respect for the equal rights of all without 
distinction as to race, sex, language or 
religion and international cooperation in 



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solving international problems of an 
economic, social, cultural or humanitarian 
character." 

10. Further, the U.N General Assembly through 

Resolution No. 2625 (XXV) "Declaration of Principles of 

International Law Concerning Friendly Relations" 

specifically states: - 

"Every State has the duty to refrain in its 
international relations from the threat or 
use of force against the territorial integrity 
or political independence of any State, or in 
any other manner inconsistent with the 
purposes of the United Nations. Such a 
threat or use of force constitutes a violation 
of international law and the Charter of the 
United Nations and shall never be 
employed as a means of settling 
international issues. " 

11. The huge loss to life & property, suffered by 
Pakistani Nations of North & South Waziristan Agency 
due to drone strikes, is thus, strictly prohibited not only by 
the Charter of the UNO but also by the Geneva 



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Conventions of 1949. According to Article 3 and Article 
52 (1) & (2) of the Additional Protocol, targeted killing is 
only lawful when the target is a "combatant" or "fighter" 
or, in the case of a civilian, only for such time as the 
person "directly participates in hostilities". Additionally, 
per Geneva Conventions Common Articles 3 & 51 (5) (b) 
and Article 7 of the Additional Protocol- 1, the killing must 
be militarily necessary, the use of force must be 
proportionate so that any anticipated military advantage is 
considered in light of the expected harm to civilians in the 
vicinity, and everything feasible must be done to prevent 
mistakes and minimize harm to civilians. It is never 
permissible for killing to be the sole objective of an 
operation as is the case in these U.S drone strikes. 
12. Mary O Connell in "Unlawful Killing with Combat 
Drones" based on the case study of Pakistan SSRN, 2004- 
2009, has clearly pointed out that since a majority of drone 
strikes in Pakistan fall under "signature strikes", these 
would not be proportionate under the Geneva Conventions 
and thus, is illegal under International Law. The forming of 



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an opinion by the CIA that these strikes target groups of 
men, who are militants having links with terrorist groups, 
is based on figment of imagination and till date no 
tangible, reliable & convincing proof has been furnished to 
that effect by the U.S Authorities including CIA. On 
December 16 , 1966 multilateral treaty, adopted by the 
United Nations General Assembly having been given 
effect from March 23 rd , 1976. It has been unanimously 
resolved with regard to civil & political rights (ICCPR) 
monitored by the Human Rights Committee where, Article 
6 (1) states that every human being has inherent right to 
life. This right shall be protected by law. No one shall be 
arbitrarily deprived of his life. 

Keeping in view the safeguard & protection to life, 
provided by the above Article, the drone strikes in Pakistan 
is blatant breach of absolute right to life. 
13. The Convention of 9 th December 1948 with regard 
to punishment of crime of Genocide, imposing prohibition 
against genocide, defined by Article 1 of the Convention 
include the following acts: - 



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a) "Acts committed with intent to 
destroy, in whole or in part, a 
national, ethnical, racial or religious 
group; 

b) Killing members of the group; 

c) Causing serious bodily or mental 
harm to members of the group; 

d) Deliberately inflicting on the group 
conditions of life calculated to bring 
about its physical destruction in 
whole or in part; 

e) Imposing measures intended to 
prevent births within the group; 

f) Forcibly transferring children of the 
group to another group. 

14. The international observers' analysis unrebuttably 
proved that through drone strikes in Pakistan territory 
residential houses, vehicles, worshippers in mosques, 
mourners in funeral procession and even rescue personnel 
have been attacked with brutality. The residential houses 
are burnt into ashes along with vehicles & cattle heads, the 



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worst kind of cruelty to the animals, besides charred bodies 
almost fully mutilated, majority of whom consist of small 
children and innocent women are found, after the strikes 
are carried out. So far no clear images of such bodies of 
alleged militants have been presented before the 
international media or any UNO body. 

15. The tribal belt (FATA) of Pakistan is 17000 
kilometers away from USA. After 9/11 incident, 
happened 11 years back, not a single noticeable terror 
incident had taken place again any where in USA. 

16. Few militants, allegedly belonging to "Alqaida 
Group", have neither the potential nor any source of 
logistic, transportation or any other means to outreach the 
West, carryout subversive activities and why for the last 
more than ten (10) years no noticeable incident took place 
there. The group, allegedly hiding in the high mountains of 
FATA & Afghanistan, has taken shelter for the safety of its 
lives, hence, they are more concerned with their own 
security by taking shelter in the caves. Keeping in view 
this hard fact, neither any Municipal Law nor International 



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Law including the UNO Charter and the provision of 
Geneva Conventions, the resolve expressed by the General 
Assembly of UNO through unanimously adopted 
resolution, permit these drone strikes, carried out and 
conducted by the CIA of USA in the sovereign territory of 
Pakistan, which is unlawful & illegal. It is a clear & naked 
aggression on sovereign territory / airspace of Pakistan. 
These strikes are carried out at the whims & will of CIA, 
neither the Government of Pakistan nor its security 
agencies are taken into confidence before carrying out 
these strikes. It is another aspect highly deplorable because 
aggression made on the territory of a sovereign State 
(Pakistan) is in clear violation of the UN Charter and 
different Conventions approved & adopted by the UN 
Member States. 

17. In view of the above established facts, undeniable in 
nature, under the U.N Charter & Conventions, the peoples 
of Pakistan have every right to ask the security forces 
either to prevent such strikes by force or to shot down the 
intruding drones because this right is conferred upon the 



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Member State, aggressed upon, to defend itself, its people 
& territory against foreign aggression and when the 
President of Pakistan, the Prime Minister & his Cabinet 
and the Parliament, through unanimously adopted 
resolution, have not only condemned the drone strikes but 
have shown serious concerns at different occasions and at 
different forums about the same, the only option left out is 
to give effective rejoinder to such naked aggression made 
on sovereign state territory / airspace. 

18. Many Human Rights Organizations including 
International Human Rights Commission and the European 
Union have also criticized the same in strongest words 
because of the heavy losses inflicted on life and properties 
both moveable & immoveable of the civilians non- 
combatants. Majority of the victims of such attacks are 
women & small children including suckling babies 
besides, animals / cattle heads & wildlife. 

19. Under the International Law & Conventions of the 
UNO, no State can choose and hit its enemy, hiding in 
another State, unless the latter State consent to it in writing 



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and with mutual collaboration the same is carried out but 
strictly under the sanction of UN Security Council which is 
not granted to the US Authorities including CIA. 

20. Pakistan has been described by the US Authorities 
including its former & incumbent President as a close 
friend on war against terror & terrorists then, why no 
confidence or mistrust is shown by the CIA and Pentagon 
to consult the Security Forces and Government of Pakistan 
and get its help to carry out strikes with high degree of 
accuracy & precisions, so that, civilians in thousands, 
having been fallen victims to such strikes, could be 
avoided. 

21. Despite of financial & technical assistance provided 
by the USA Government to the Government of Pakistan, 
the Security Forces and to the people of Pakistan in the 
Social Development Sector, is going waste because of the 
unilateral policy of attacking Pakistani territory through 
drone strikes and consistent interference in its internal 
affairs. 



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22. Under the Constitution of Pakistan, 1973 
particularly Article 199 thereof put this Court under 
tremendous obligation to safeguard & protect the life & 
property of the citizen of Pakistan and any person for the 
time being in Pakistan, being fundamental rights, hence, 
this Court is constrained to hold as follows: - 

i. "That the drone strikes, carried out 
in the tribal areas (FATA) 
particularly North & South 
Waziristan by the CIA & US 
Authorities, are blatant violation of 
Basic Human Rights and are against 
the UN Charter, the UN General 
Assembly Resolution, adopted 
unanimously, the provision of 
Geneva Conventions thus, it is held 
to be a War Crime, cognizable by the 
International Court of Justice or 
Special Tribunal for War Crimes, 
constituted or to be constituted by the 
UNO for this purpose. 

ii. That the drone strikes carried out 
against a handful of alleged 



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militants, who are not engaged in 
combat with the US Authorities or 
Forces, amounts to breach of 
International Law and Conventions 
on the subject matter, therefore, it is 
held that these are absolutely illegal 
& blatant violation of the 
Sovereignty of the State of Pakistan 
because frequent intrusion is made 
on its territory / airspace without its 
consent rather against its wishes as 
despite of the protests lodged by the 
Government of Pakistan with USA on 
the subject matter, these are being 
carried out with impunity. 

Hi. That the civilians casualties, as 
discussed above, including 
considerable damage to properties, 
livestock, wildlife & killing of 
infants/ suckling babies, women and 
preteen children, is an uncondonable 
crime on the part of US Authorities 
including CIA and it is held so. 



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That in view of the established facts 
& figures with regard to civilians 
casualties & damage caused to the 
properties, livestock of the citizens of 
Pakistan, the US Government is 
bound to compensate all the victims ' 
families at the assessed rate of 
compensation in kind of US dollars. 

The Government of Pakistan and its 
Security Forces shall ensure that in 
future such drone strikes are not 
conducted & carried out within the 
sovereign territory of Pakistan. 
Proper warning be administered in 
this regard and if that does not work, 
the Government of Pakistan and 
State Institutions particularly the 
Security Forces shall have the right 
being under constitutional & legal 
obligations to shutdown the drones, 
attacking Pakistani territories or 
when these enter the airspace of 
Pakistan Sovereign territory. 



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vi. The Government of Pakistan is 
directed to take the matter seriously 
before the Security Council of the 
UNO and in case it does not succeed 
there if VETTO power is unduly 
exercised by the US Authorities then, 
urgent meeting of the General 
Assembly be requisitioned through a 
written request to resolve this 
menace in an effective manner. 

vii. The Government of Pakistan shall 
also file a proper complaint, giving 
complete details of the losses 
sustained by the Pakistani civilians 
citizens both to life & properties due 
to drone strikes, making a request to 
the UN Secretary General to 
constitute an independent War Crime 
Tribunal which shall have the 
mandate to investigate & enquire 
into all these matters and to give a 
final verdict as to whether the same 
amounts to War Crime or not and in 
the former case to direct the US 
Authorities / Government to 



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immediately stop the drone strikes 
within the airspace / territory of 
Pakistan and to immediately arrange 
for the complete & full compensation 
for the victims' families of the 
civilians of Pakistan both for life & 
properties at the rate & ratio laid 
down under the international 
standards. 

viii. The Ministry of Foreign Affairs is 
directed to prepare draft resolution / 
complaints and requisition for doing 
the needful within a minimum 
possible time in line of the above 
guidelines given by the Court, also 
asking & requiring the Security 
Council and the General Assembly, 
as the case may be, to pass a 
resolution condemning the drone 
strikes, flown by the CIA / US 
Authorities and violating the 
sovereign territory of Pakistan in 
violation of UN Charter and various 
Conventions of the UNO, referred to 
above. 



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ix. In case the US Authorities do not 
comply with the UNO Resolution, 
whether passed by the Security 
Council or by the General Assembly 
of UNO, the Government of Pakistan 
shall severe all ties with the USA and 
as a mark of protest shall deny all 
logistic & other facilities to the USA 
within Pakistan. 

This and the connected writ petitions all are 
admitted & allowed in the above terms. 

Announced: 

CHIEF JUSTICE 
JUDGE 



/*Saif*/